(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 21, 1997 -- Decided June 25, 1997
COLEMAN, J., writing for a unanimous Court.
In this appeal the Court addresses two issues: whether the act of mailing a torn-up support order on
two occasions by one former spouse to the other constitutes a violation of the harassment statute, N.J.S.A.
2C:33-4(a); and whether the same mailings constitute violations of a final domestic violence restraining order.
Brian Hoffman and Mary Hoffman were married for seven years. Thereafter, in September l99l,
Brian began a course of assaultive behavior resulting in the issuance of several temporary restraining orders
against him.
Ultimately, a final restraining order was entered by the Chancery Division in February l992, which
prohibited Brian from committing future acts of violence and from having contact with Mary or her children
from a prior marriage. The final order further barred Brian from the family homes and prohibited him from
making harassing communications to Mary and her three children. Lastly, the final order directed Brian to
pay child support and awarded Mary exclusive possession of the family home in Linwood and temporary
custody of the two children born of the marriage.
Following the entry of the final restraining order, Brian continued to engage in a pattern of
harassing behavior. On one occasion, on April 16, l992, as Mary was driving her vehicle towards the family
home in Somers Point, she noticed Brian's vehicle approaching from the opposite direction. As the two
vehicles passed each other, Brian slammed on his brakes, appeared to shout something, shook his hand in a
fist, and pointed his index finger at her as if he were shooting a gun. The following day, he again went to
the Somers Point home but this time went inside. On that day, the Somers Point police arrested Brian and
charged him with burglary, attempted larceny, unlawful possession of a weapon, criminal mischief, and
contempt of the final restraining order. He subsequently pleaded guilty to some of the charges for which he
received a custodial sentence of 364 days.
While serving the county jail term, Brian mailed a package to Mary containing a Notice of Motion to
modify the support order, a financial statement, and a torn-up copy of the support order. The following day,
Mary received the identical package by certified mail. Mary subsequently filed two complaints against Brian
for the separate mailings of the torn-up support order, alleging that each of the mailings constituted two
distinct offenses: a harassing communication, in violation of N.J.S.A. 2C:33-4(a), and contempt for violating
the final restraining order, in violation of N.J.S.A. 2C:29-9(b).
At trial, the court convicted Brian of the charges of contempt and harassment for the two mailings
and of contempt for the April 16 incident, which had been consolidated for trial. The Appellate Division
affirmed Brian's conviction and sentence for contempt based on the April 16 incident. It reversed the two
harassment and contempt convictions relating to the mailings. The majority of the panel held that the two
mailings did not constitute harassment within the meaning of N.J.S.A. 2C:33-4(a) because the mailings were
not likely to alarm or to seriously annoy Mary or a reasonable person. The majority also vacated the two
contempt convictions because the controlling language in the contempt statute is the same as that in the
harassment statute. The dissent disagreed, finding that the two mailings satisfied the requirements of both
statutes.
The State appealed as of right to the Supreme Court based on the dissent.
HELD: Although Brian Hoffman did not violate the harassment statute by the two mailings of the torn-up
support order to Mary Hoffman because those mailings did not invade her privacy; those same mailings did
constitute a violation of the final restraining order.
1. The purpose to be served by enactment of the harassment statute is to make criminal, private annoyances
that are not entitled to constitutional protection, and the substantive criminal offense proscribed by
subsection (a) is directed at the purpose behind and motivation for making the communication. (pp. 9-11)
2. A finding of purpose to harass may be inferred from the evidence presented. (pp. 11-12)
3. When a statute is ambiguous, a court's function is to ascertain and to effectuate the Legislature's intent
and extrinsic aids, such as legislative history may be used to help resolve any ambiguity and to ascertain the
true intent of the Legislature. (pp. 12-14)
4. Because the Legislature did not state its intent in using the word “annoy” in subsection (a) of the
harassment statute and because it intended for each subsection to stand alone, the words and phrases used
by the Legislature should be accorded their normal and accepted connotations as well as their ordinary and
well understood meanings. (pp. 14-16)
5. Subsection (a) of the harassment statute proscribes even a single act of communicative conduct when its
purpose is to harass, and the annoyance or alarm required by that subsection need not be serious. (pp. 16-17)
6. A statute that is vague creates a denial of due process because of a failure to provide notice and warning
to an individual that his or her conduct could subject that individual to criminal prosecution. (pp. 17-18)
7. The ordinary usage of the term “harass” is sufficient to inform a person of normal intelligence of the
type of mental culpability needed. (p. 18)
8. The Legislature intended that the catchall provision of subsection (a) encompass only those types of
communications that also are invasive of the recipient's privacy. (pp. 19-20)
9. The Legislature did not intend to criminalize communications under subsection (a) that are made in
inoffensive language, at convenient hours, or in the communicator's own name. (pp. 20-21)
10. In determining whether one's conduct is likely to cause the required annoyance or alarm to the victim,
that person's past conduct toward the victim and the relationship's history must be taken into account,
especially in domestic violence cases. (pp. 21-24)
11. Although it is true that, in the area of domestic violence, some people may attempt to use the process as
a sword rather than as a shield, courts have not hesitated to terminate a potential prosecution when the
charges have been trivial or the prosecution would have been absurd. (pp. 24-26)
12. The two mailings Brian sent to Mary were written contacts with her in violation of the restraining order.
(pp.26-29)
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN's opinion.
SUPREME COURT OF NEW JERSEY
A-
78 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRIAN P. HOFFMAN,
Defendant-Respondent.
Argued January 21, 1997 -- Decided June 25, 1997
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 290
N.J. Super. 588 (1996).
James F. Smith, Assistant Prosecutor, argued
the cause for appellant (Jeffrey S. Blitz,
Atlantic County Prosecutor, attorney; Jack J.
Lipari, Assistant Prosecutor, on the letter
brief).
Christine M. Cote argued the cause for
respondent (Cooper Perskie April Niedelman
Wagenheim & Levenson, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
This is a domestic violence case that raises two significant
issues: whether the act of mailing a torn-up support order on
two occasions by one former spouse to the other constitutes a
violation of the harassment statute, N.J.S.A. 2C:33-4(a); and
whether the same mailings constitute violations of a final
domestic violence restraining order . The trial court held that
the act of mailing the torn-up support order violated both
statutes. In a published opinion, the Appellate Division
concluded that the mailings violated neither statute.
290 N.J.
Super. 588, 599-601 (1996). A dissenting member of the panel
would have affirmed the convictions. Id. at 609-12. This appeal
is before us as of right. R. 2:2-1(a)(2). We now reverse in
part and affirm in part.
Defendant Brian P. Hoffman and Mary Hoffman were married for
seven years. The family unit included two children born of the
marriage and three children from Mary's former marriage. A fire
in the marital home in June 1991 forced the family to relocate
from Somers Point to Linwood.
Approximately three months after relocating to the Linwood
home, defendant commenced a course of conduct that led to the
issuance of a final restraining order. In September 1991,
defendant was arrested for assaulting Mary during an argument.
On September 24, 1991, a temporary restraining order was issued
against defendant pursuant to the Prevention of Domestic Violence
Act, N.J.S.A. 2C:25-1 to -16, which was repealed and replaced by
the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33 ("1991 Act"). Those charges were dismissed on November
19, 1991, with Mary's consent.
Five days later, defendant and Mary argued again and
defendant once again assaulted Mary. She filed a second assault
charge against defendant. On December 19, 1991, Mary again
dropped the charges. Although Mary gave a sworn statement that
she had not been threatened or coerced into withdrawing the
criminal charges, she later informed the Cape May County
Prosecutor that she had been coerced into dropping the two
assault charges by defendant's threats on her and her children's
lives.
Approximately two weeks later, defendant's abusive behavior
began once again, and on January 31, 1992, another temporary
restraining order was issued pursuant to N.J.S.A. 2C:25-28(h). A
final restraining order was entered by the Chancery Division,
Family Part, on February 6, 1992. The content of that order
played a significant role in what was to follow.
That final order (1) prohibited defendant from committing
future acts of domestic violence, pursuant to N.J.S.A. 2C:25-29(b)(1); (2) prohibited defendant from having contact with Mary
and her three children from her prior marriage, pursuant to
N.J.S.A. 2C:25-29(b)(6); (3) barred defendant from the Somers
Point and Linwood homes, pursuant to N.J.S.A. 2C:25-29(b)(6); (4)
prohibited defendant from making harassing communications to
Mary, her three children from the prior marriage, and her mother,
pursuant to N.J.S.A. 2C:25-29(b)(7); and (5) directed defendant
to pay child support, pursuant to N.J.S.A. 2C:25-29(b)(4). In
addition, the final order awarded Mary exclusive possession of
the Linwood home and temporary custody of the two children born
of the marriage.
Although the parties had separated before the end of January
1992, that did not end the alleged pattern of harassing behavior.
On February 6, 1992, defendant allegedly violated the final
restraining order by surreptitiously entering the Somers Point
home. Mary filed a complaint against defendant on April 7, 1992,
with the Atlantic County Family Part, charging him with contempt
of court, contrary to N.J.S.A. 2C:29-9(b), for violating the
restraining order. That complaint relied on information that
Mary had received from her next-door neighbor. The neighbor had
heard noises from the family home and had gone over to
investigate. After the neighbor called out defendant's name
several times, defendant allegedly responded "yes -- yeah, it's
okay." The neighbor also saw defendant's car, a red Volvo, in
the driveway.
On February 7, 1992, in an apparent attempt to abide by the
restraining order, defendant went to the Linwood home with police
escorts to retrieve his belongings. While there, he allegedly
destroyed articles of Mary's clothing by ripping or cutting them.
Mary did not file charges against defendant for that incident.
On April 16, 1992, defendant again allegedly violated the
final restraining order. Mary and her children had gone to the
Somers Point home to clean up after the June 1991 fire and to
take an inventory. Mary left the children at the home for
approximately twenty minutes to drive to her attorney's office to
pick up a child support check. As she was returning to the
Somers Point home, she noticed defendant's car approximately
eight houses from her home, approaching her from the direction of
the Somers Point home. Mary became fearful for her children. As
the vehicles of defendant and Mary passed each other, defendant
slammed on his brakes, appeared to shout something, shook his
hand in a fist, and pointed his index finger at her as if he were
shooting a gun.
The next day, April 17, 1992, defendant again went to the
Somers Point home; only this time he went inside. On that day,
the Somers Point police arrested defendant and charged him with
burglary, attempted larceny, unlawful possession of a weapon,
criminal mischief, and contempt of the final restraining order.
On July 8, 1992, pursuant to a plea agreement, defendant
pled guilty in the Law Division to criminal trespass and
contempt, two fourth-degree offenses related to the April 17
episode. Other charges related to that episode were dismissed.
Defendant was sentenced in August 1992 to three years of
probation, and as a condition thereof, he was required to serve
364 days in jail.
Apparently unhappy because defendant had been permitted to
plead guilty to the lesser charges for the April 17 episode with
a favorable sentence recommendation, Mary filed a municipal court
complaint on or about July 9, 1992, charging defendant with
harassment for engaging in a course of alarming conduct, in
violation of N.J.S.A. 2C:33-4(c). Defendant was also charged
with contempt for making contact with Mary that was prohibited by
the February 6 order, in violation of N.J.S.A. 2C:29-9(b). That
complaint was related to the April 16 car incident.
While serving the county jail term for the April 17 episode,
defendant mailed a package to Mary that she received on June 23,
1993. The envelope contained a Notice of Motion to modify a
support order that had been entered a year earlier as part of the
couple's divorce proceedings, a financial statement, and a torn-up copy of the support order. The next day, Mary received a
notice from the post office informing her that it had a received
a piece of certified mail for her. Mary picked up the certified
mail on June 25. It contained another torn-up copy of the same
support order and the other previously mentioned documents that
she had received in the June 23 delivery.
Mary filed two complaints against defendant for the two
mailings of the torn-up support order. Each complaint alleged
that each of the mailings constituted two distinct offenses: an
harassing communication, in violation of N.J.S.A. 2C:33-4(a), and
contempt for violating the February 6, 1992, final restraining
order, a violation of N.J.S.A 2C:29-9(b).
A bench trial was conducted in the Family Part on August 5,
1993. Four contempt charges, consisting of the two mailings, the
February 6, 1992, entry into the Somers Point home, and the April
16, 1992, car incident, were consolidated for trial. Three
harassment charges, consisting of the two mailings alleged to be
in violation of N.J.S.A. 2C:33-4(a) and the April 16, 1992, car
incident alleged to be in violation of N.J.S.A. 2C:33-4(c), were
also consolidated for trial.
The trial court found Mary to be an "extremely credible"
witness and, on the basis of her testimony, concluded that the
incidents of April 16, 1992, and the June 23 and June 25, 1993,
mailings had occurred as she had reported them. However, the
trial court granted defendant's motion for a directed verdict on
the contempt charge for violating the final restraining order
based on defendant's February 6 entry into the Somers Point home.
The motion was granted because the court was not convinced beyond
a reasonable doubt that defendant had entered the Somers Point
home on that date. The trial court also acquitted defendant of
the harassment charge related to the April 16 event. The court
interpreted N.J.S.A. 2C:33-4(c) to require more than a single
episodic act. It considered defendant's gesture with his hand
and finger from his automobile to constitute a single act rather
than a course of conduct that it deemed was required by N.J.S.A.
2C:33-4(c).
The trial court convicted defendant of the remaining five
charges: the contempt charge relating to the April 16 incident;
the charges of contempt and harassment for the June 23 mailing;
and the charges of contempt and harassment for the June 25
mailing.
For sentencing purposes, the trial court merged defendant's
harassment convictions with the accompanying contempt convictions
related to the two mailings and sentenced him to concurrent terms
of thirty days in the Atlantic County Justice Facility. For the
April 16 contempt conviction, defendant was sentenced to the same
facility for a concurrent term of six months.
The Appellate Division affirmed defendant's conviction and
sentence for contempt based on the April 16 incident. 290 N.J.
Super. at 601. It reversed the two harassment and the two
contempt convictions relating to the two mailings. Id. at 599-601.
The majority held that the two mailings did not constitute
harassment within the meaning of N.J.S.A. 2C:33-4(a) because the
mailings were not likely to alarm or to seriously annoy Mary or a
reasonable person. 290 N.J. Super. at 599. The majority vacated
the two contempt convictions because the controlling language in
the contempt statute is the same as the controlling language in
the harassment statute. Id. at 600-01. The dissent disagreed,
finding that the two mailings satisfied the requirements of both
statutes. Id. at 612. The State has appealed of right based on
the dissent.
The State argues that the majority of the Appellate Division
panel incorrectly construed as equivalents the harassment
statutory terms "annoyance" and "alarm." The State relies on the
plain language of the terms "annoy" and "alarm" and distinguishes
them by degrees of fear. The State maintains that the majority
erred by failing to examine and apply the statutes in light of
the legislative objective embodied in the 1991 Act.
Defendant contends that the majority opinion construed the
harassment statute to require serious annoyance under subsection
(a) because without such a construction the statute would be void
for vagueness, thereby rendering it unconstitutional. He
contends that if the Court finds that the majority erred in its
construction of the statute, then the Court should declare the
statute unconstitutional. We find that the principal issue
before us, the issue that divided the Appellate Division, whether
a "serious" annoyance must be found under subsection (a), is the
wrong issue upon which to focus. The proper focus in a
subsection (a) prosecution should be on whether the method or
manner of communication established an harassing intent to annoy
or alarm.
A determination of whether the two mailings constitute
harassment must begin with the statutory language. The
harassment statute provides in relevant part:
[A] person commits a petty disorderly persons
offense if, with purpose to harass another,
he:
a. Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking,
kicking, shoving, or other offensive
touching, or threatens to do so; or
c. Engages in any other course of
alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy
such other person.
A communication under subsection a. may
be deemed to have been made either at the
place where it originated or at the place
where it was received.
[N.J.S.A. 2C:33-4 (emphasis added).]
Each of those three subsections is "free-standing, because each defines an offense in its own right." State v. Mortimer, 135 N.J. 517, 525 (1994). The plain language of subsection (a) provides that a person commits a petty disorderly persons offense if he or she communicates in a "manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or
causing the communication to be made was to harass another
person; and (3) the communication was in one of the specified
manners or any other manner similarly likely to cause annoyance
or alarm to its intended recipient.
The purpose to be served by enactment of the harassment
statute is to make criminal, private annoyances that are not
entitled to constitutional protection. 2 Final Report of the New
Jersey Criminal Law Revision Commission, commentary to § 2C:33-4,
at 296 (1971) ("Final Report"). Thus, the substantive criminal
offense proscribed by subsection (a) "is directed at the purpose
behind and motivation for" making or causing the communication to
be made. Mortimer, supra, 135 N.J. at 528.
It is undisputed that defendant mailed the two
communications to Mary. The State was required to prove beyond a
reasonable doubt that defendant's purpose in mailing the
communications was to harass Mary. E.K. v. G.K.,
241 N.J. Super. 567, 570 (App. Div. 1990). The New Jersey Code of Criminal
Justice defines "purposely" as follows: "A person acts purposely
with respect to the nature of his conduct or a result thereof if
it is his conscious object to engage in conduct of that nature or
to cause such a result." N.J.S.A. 2C:2-2(b)(1). The trial
court found that defendant had acted with the purpose to harass
Mary, reasoning that there was no other purpose for defendant to
mail torn-up copies of the order.
A finding of a purpose to harass may be inferred from the
evidence presented. State v. McDougald,
120 N.J. 523, 566-67
(1990); State v. Avena,
281 N.J. Super. 327, 340 (App. Div.
1995). Common sense and experience may inform that
determination. State v. Richards,
155 N.J. Super. 106, 118 (App.
Div.), certif. denied,
77 N.J. 478 (1978).
Our review of the record reveals a substantial evidentiary
basis to support the trial court's finding that defendant's
purpose was to harass Mary. The mailings of the torn-up copy
served no legitimate purpose. Inclusion of the previous support
order, torn-up or otherwise, was not necessary for defendant to
inform Mary of his motion to modify the support order. As the
custodial parent, Mary was fully aware of the terms of the
support order. Absent a legitimate purpose behind defendant's
actions, the trial court could reasonably infer that defendant
acted with the purpose to harass Mary.
The third and crucial element of harassment under subsection
(a), namely whether the two mailings were in a "manner likely to
cause annoyance or alarm" to Mary, is more problematic. N.J.S.A.
2C:33-4(a). Because subsection (a) uses no adjective to quantify
the degree of annoyance required, the majority in the Appellate
Division held that the annoyance must be serious. It reasoned
that the Legislature did not intend to "criminalize irksome or
vexing communications." 290 N.J. Super. at 598-99. We disagree
with the Appellate Division that the "serious annoyance" required
by subsection (c) must be engrafted into the "annoyance" required
under subsection (a).
When construing a statute, the first consideration is the
statute's plain meaning. State v. Szemple,
135 N.J. 406, 421
(1994); Merin v. Maglaki,
126 N.J. 430, 434 (1992); Town of
Morristown v. Woman's Club,
124 N.J. 605, 610 (1991). If
differing interpretations exist, then the phrase's meaning is not
obvious or self-evident on its face. Szemple, supra, 135 N.J. at
422. When a statute is ambiguous, a court's function is to
ascertain and to effectuate the Legislature's intent. Szemple,
supra, 135 N.J. at 422 (citing Cedar Cove, Inc. v. Stanzione,
122 N.J. 202, 213 (1991)). Extrinsic aids, such as legislative
history, committee reports, and contemporaneous construction, may
be used to help resolve any ambiguity and to ascertain the true
intent of the Legislature. Ibid.
"The primary task for the Court is to `effectuate the
legislative intent in light of the language used and the objects
sought to be achieved.'" Merin, supra, 126 N.J. at 435 (quoting
State v. Maguire,
84 N.J. 508, 514 (1980)); see Richard's Auto
City, Inc. v. Director, Div. of Taxation,
140 N.J. 523, 533
(1995). As we noted earlier, when enacting N.J.S.A. 2C:33-4, the
Legislature sought to fill gaps in the Code of Criminal Justice.
2 Final Report, supra, commentary to § 2C:33-4, at 296. The
commentary to the Final Report states:
Special provision for these private
annoyances is required since Section 2C:33-2
(Disorderly Conduct) is limited to
disturbance of some general impact [as
opposed to impact on a particular
individual]. The present Section is also
needed to fill a gap caused by some
exclusions from the provisions of Section
2C:12-1 (Assaults).
[Ibid.]
Two repealed statutes, N.J.S.A. 2A:170-26 and N.J.S.A.
2A:170-29, served as sources for N.J.S.A. 2C:33-4. See 2 Final
Report, supra, commentary to § 2C:33-4, at 296; L. 1978, c. 95, §
2C:33-4. N.J.S.A. 2A:170-26 addressed assaultive behavior.
N.J.S.A. 2A:170-29 prohibited among other things, public
utterances of loud and offensive or profane language, and public
or private harassing telephone calls.
The final source for N.J.S.A. 2C:33-4 was the American Law
Institute's Model Penal Code ("MPC") § 250.4. 1 Final Report,
supra, source or reference note to § 2C:33-4, at 113. The
commentary to MPC § 250.4 states that that section applies to
harassment of another individual. Model Penal Code and
Commentaries § 250.4, cmt. 1, at 360 (Official Draft and Revised
Comments 1980) ("MPCC"). The MPC, however, did not include the
term "annoy" in its text. Id. at 359-60. In defining a
"prohibited course of alarming conduct" (currently prohibited by
N.J.S.A. 2C:33-4(c)), the commentary to the MPC states, "[a]larm,
of course, may be induced in an infinite variety of ways, but the
requirement excludes from the offense actions not productive of
anxiety or distress." MPCC, supra, § 250.4, cmt. 5, at 368.
Ordinarily, the legislative history can be very helpful in
determining legislative intent. Here, however, the Legislature
when enacting N.J.S.A. 2C:33-4 did not explicitly state its
intent concerning the term "annoy"; therefore, the legislative
history is not particularly helpful in ascertaining the meaning
of the terms "annoy" and "alarm" as codified in N.J.S.A. 2C:33-4(a). As the dissenting opinion noted, N.J.S.A. 2C:33-4(a) does
not modify the verb "annoy" with the adverb "seriously." 290
N.J. Super. at 609. A familiar principle of statutory
construction precludes the Court from engrafting the term
"serious" found in subsection (c) into subsection (a) because the
Legislature carefully employed it in subsection (c) and excluded
it in subsection (a), thereby indicating that the exclusion was
intentional. See GE Solid State, Inc. v. Director, Div. of
Taxation,
132 N.J. 298, 308 (1993); Marshall v. Western Union
Tel. Co.,
621 F.2d 1246, 1251 (3d Cir. 1980). Moreover, the
Legislature intended for each subsection of the harassment
statute to be free-standing. See Mortimer, supra, 135 N.J. at
525.
Consequently, the words and phrases used by the Legislature
should be accorded their normal and accepted connotations as well
as their ordinary and well understood meanings. Fahey v. City of
Jersey City,
52 N.J. 103, 107 (1968); State v. Sperry &
Hutchinson Co.,
23 N.J. 38, 46 (1956). One dictionary defines
"to annoy" as "to interfere with[, to] affect detrimentally
. . . [,] to be a source of annoyance . . . [; annoy] suggests
disturbed or irritated loss of composure, placidity, or patience
through enduring affliction, . . . slight, or discomfort."
Webster's Third New International Dictionary 87 (1993)
("Webster's"). Another dictionary defines "annoy" as "[t]o
disturb or irritate, especially by continued or repeated acts; to
weary or trouble; to irk; to offend." Black's Law Dictionary 89
(6th ed. 1990).
We are satisfied that the Legislature intended that the term
"annoyance" should derive its meaning from the conduct being
scrutinized. As will be developed more fully later, subsection
(a) proscribes a single act of communicative conduct when its
purpose is to harass. Under that subsection, annoyance means to
disturb, irritate, or bother. Subsection (b) (the assault and
battery or physical contact harassment section) deals with
touchings or threats to touch, and it does not require the
intended victim to be annoyed or alarmed. In contrast to
subsection (a), which targets a single communication, subsection
(c) targets a course of conduct. Subsection (c) proscribes a
course of alarming conduct or repeated acts with a purpose to
alarm or seriously annoy an intended victim.
The purpose of subsection (c) is to reach conduct not
covered by subsections (a) and (b). For example, if a person
were to ring a former companion's doorbell at 3:00 p.m. on
Sunday, flash bright lights into her windows on Monday at 6:00
p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m.,
throw eggs on her car on Wednesday, and repeat the same conduct
over a two-week period, a judge could find that subsection (c)
has been violated. We do not imply by that example that five or
more episodes are required to establish a course of alarming
conduct. That determination must be made on a case-by-case
basis. We conclude only that serious annoyance under subsection
(c) means to weary, worry, trouble, or offend.
Thus, the difference between "annoyance" and "serious
annoyance" is a matter of degree. That is a choice that the
Legislature is free to make. The judiciary does not have a
license to rewrite legislation to make it conform to its wishes.
State v. Muhammad,
145 N.J. 23, 40 (1996). The Legislature has
made the conscious choice that the level of annoyance caused by
communications directed to a person with purpose to harass need
not be as serious as that required by subsection (c). The
Legislature no doubt felt that because of the widespread use of
some forms of communication to harass people, the impact upon the
intended victim should not have to be as severe to sustain a
violation of subsection (a) as that required by subsection (c).
Although we hold that the annoyance or alarm required by
subsection (a) need not be serious, the catchall provision of
subsection (a) must be interpreted to protect against
unconstitutional vagueness and impermissible restrictions on
speech. Defendant maintains that if subsection (a) does not
require serious annoyance, then that subsection fails the
constitutional vagueness test.
A statute that is vague creates a denial of due process
because of a failure to provide notice and warning to an
individual that his or her conduct could subject that individual
to criminal or quasi-criminal prosecution. Screws v. United
States,
325 U.S. 91, 101-02,
65 S. Ct. 1031, 1035,
89 L. Ed. 1495, 1503 (1945). This Court has stated that
"[c]lear and comprehensible legislation is a
fundamental prerequisite of due process of
law, especially where criminal responsibility
is involved. Vague laws are unconstitutional
even if they fail to touch constitutionally
protected conduct, because unclear or
incomprehensible legislation places both
citizens and law enforcement officials in an
untenable position. Vague laws deprive
citizens of adequate notice of proscribed
conduct, and fail to provide officials with
guidelines sufficient to prevent arbitrary
and erratic enforcement."
[State v. Afanador,
134 N.J. 162, 170 (1993)
(alteration in original) (quoting Town
Tobacconist v. Kimmelman,
94 N.J. 85, 118
(1983)) (emphasis added).]
We reject defendant's vagueness argument and reaffirm our
decision in Mortimer, supra, 135 N.J. at 536, holding that
N.J.S.A. 2C:33-4(a) is not unconstitutionally vague. The
specific state of mind required, with purpose to harass the
intended recipient of the communication, is sufficiently clear
and serves to clarify any vague phrases in subsection (a). The
ordinary usage of the term "harass" is sufficient to inform a
person of normal intelligence of the type of mental culpability
needed. As was stated in Mortimer, the phrases in the statute
when read in isolation may be vague, but subsection (a) is not
vague because each communication is subject to the requirement
that there be a purpose to harass. Mortimer, supra, 135 N.J. at
535-36.
Independent of, and yet related to, the vagueness argument
is the problem of how to interpret the phrase "any other manner"
of communication contained in the catchall provision of
subsection (a). If possible, we should interpret that phrase in
a way that avoids successful overbreadth challenges. An
overbreadth challenge may be successful where there is "a strong
showing that the statute's deterrent effect on legitimate
expression is . . . real and substantial . . . and that the sweep
of the legislation will impermissibly hobble the exercise of
protected First Amendment rights." New Jersey State Chamber of
Commerce v. New Jersey Election Law Enforcement Comm'n,
82 N.J. 57, 66 (1980) (citations omitted) (internal quotation marks
omitted); State v. Finance Am. Corp.,
182 N.J. Super. 33, 37
(App. Div. 1981).
Clearly the two mailings were not sent anonymously, or at an
extremely inconvenient hour, or in offensively coarse language,
all of which are proscribed by subsection (a). Those three types
of communication properly can be classified as being invasive of
the recipient's privacy. Thus, we believe the Legislature
intended that the catchall provision of subsection (a) encompass
only those types of communications that also are invasive of the
recipient's privacy.
As we noted earlier, subsection (a) is similar to MPC §
250.4(3).
As the Model Penal Code Commentary to this
section notes, the First Amendment is
implicated since the provision proscribes
harassment by communication. The Commentary
notes that this particular provision
(N.J.S.A. 2C:33-4a or § 250.4(3)) presents a
difficult overbreadth issue. Although the
principal application of this section is to
harassing phone calls, it has been applied in
other contexts. In light of the Supreme
Court's decision in Rowan v. Post Office
Dept.,
397 U.S. 728,
90 S. Ct. 1484,
25 L.
Ed.2d 736 (1970), the Commentary notes that
"Subsection (3) should perhaps be interpreted
to apply only to repeated phone calls or
other kinds of communicative harassment that
intrude into an individual's legitimate
expectation of privacy." Model Penal Code
and Commentaries § 250.4, at 372-374
(Official Draft and Revised Comments 1980).
[Roe v. Roe,
253 N.J. Super. 418, 429 n.3
(App. Div. 1992).]
The catchall provision of N.J.S.A. 2C:33-4(a) should
generally be interpreted to apply to modes of communicative
harassment that intrude into an individual's "legitimate
expectation of privacy." MPCC, supra, § 250.4, cmt. 6, at 374.
Many forms of speech, oral or written, are intended to annoy.
Letters to the editor of a newspaper are sometimes intended to
annoy their subjects. We do not criminalize such speech, even if
intended to annoy, because the manner of speech is non-intrusive.
Thus, in enforcing subsection (a) of the harassment statute,
we must focus on the mode of speech employed. That subsection of
our statute, like those elsewhere, is "aimed, not at the content
of the offending statements but rather at the manner in which
they were communicated." Finance Am. Corp., supra, 182 N.J.
Super. at 39-40. Speech that does not invade one's privacy by
its anonymity, offensive coarseness, or extreme inconvenience
does not lose constitutional protection even when it is annoying.
Because subsection (a) has criminalized communications that are
made anonymously or in offensively coarse language or at
extremely inconvenient hours, we assume that the Legislature did
not intend to criminalize communications under subsection (a)
that are made in inoffensive language, at convenient hours, or in
the communicator's own name.
That conclusion is consistent with the ejusdem generis
principle of statutory interpretation. See 2A Norman J. Singer,
Sutherland Statutory Construction § 47.17 (5th ed. 1992).
Under this rule, when general words follow
specific words in a statutory enumeration,
the general words are construed to embrace
only the objects similar in nature to those
objects enumerated by the preceding specific
words. This technique saves the legislature
from spelling out in advance every
contingency in which the statute could apply.
[Hovbilt, Inc. v. Township of Howell,
263 N.J. Super. 567, 571 (App. Div. 1993)
(citations omitted), aff'd,
138 N.J. 598
(1994).]
Although we hold that defendant was improperly convicted
under subsection (a) because those mailings did not invade Mary's
privacy so as to constitute harassment, we emphasize that the
trial court is permitted to examine the totality of the
circumstances, especially and including the context of domestic
violence, in determining whether subsection (a) has been
violated. Our law is particularly solicitous of victims of
domestic violence, and the 1991 Act therefore influences our
interpretation of the harassment statute. See N.J.S.A. 2C:25-18
(providing that the purpose of the 1991 Act is to assure the
victims of domestic violence "the maximum protection from abuse
the law can provide").
At its core, the 1991 Act effectuates the notion that the
victim of domestic violence is entitled to be left alone. To be
left alone is, in essence, the basic protection the law seeks to
assure these victims. Cf. State v. Mosch,
214 N.J. Super. 457,
466 (App. Div. 1986) ("The scales of justice remind us that the
public as well as this victim have a right to feel safe when
alone in their own homes. Since the incident here occurred, D.D.
has been afraid to leave her apartment, afraid to be left alone
and, even worse, afraid to walk around her own apartment. Each
and every one of us has the fundamental right to be left
alone."), certif. denied,
107 N.J. 131 (1987). Thus, we are
persuaded that the Legislature intended that although conduct or
speech that may not sufficiently constitute an invasion of
privacy to the non-victim, may in fact constitute harassment to
the victim of past domestic abuse.
In determining whether a defendant's conduct is likely to
cause the required annoyance or alarm to the victim, that
defendant's past conduct toward the victim and the relationship's
history must be taken into account. The incidents under scrutiny
must be examined in light of the totality of the circumstances.
This is particularly true in domestic violence cases in
which a cycle of violent behavior is evident. Indeed, courts are
required to consider "[t]he previous history of domestic violence
between the [parties], including threats, harassment and physical
abuse" when determining whether the 1991 Act has been violated.
N.J.S.A. 2C:25-29(a)(1). As was demonstrated here, those who
commit acts of domestic violence have an unhealthy need to
control and dominate their partners and frequently do not stop
their abusive behavior despite a court order. See James Martin
Truss, The Subjection of Women . . . Still: Unfulfilled Promises
of Protection for Women Victims of Domestic Violence, 26 St.
Mary's L.J. 1149, 1172-73 (1995); Dennis Hevesi, For the Abused,
An Electronic Lifeline, N.Y. Times, July 27, 1995, at B3.
Victims are actually at their highest risk of injury when they
try to leave their abusers. See Truss, supra, 26 St. Mary's L.J.
at 1172-73; Barbara Stewart, What Drives a Batterer? Issues of
Control, N.Y. Times, Nov. 3, 1996, at NJ4. Domestic violence
victims who leave their abusers are justified in their continued
fear because of the many cases of victims who are assaulted or
killed by former partners.
The trial court appropriately observed that defendant had a
history of committing acts of domestic violence against Mary and
of violating the restraining order. The trial court correctly
found that defendant had no purpose other than to harass Mary in
mailing the torn-up orders. Mary was unaware of any legitimate
function that was served by the torn-up orders; that made her
more likely to feel alarmed or annoyed. An abuser who
spontaneously appears or makes surprising communications without
any legitimate purpose enhances the victim's apprehension. The
fears of a domestic violence victim and the turmoil she or he has
experienced should not be trivialized. In different contexts, a
recipient of a torn-up court order may not be alarmed or
seriously annoyed, but some victims of domestic violence may
rightly view a course of communicative conduct as seriously
annoying, alarming, or threatening, or as all of those things.
Based on the final restraining order that was issued
pursuant to the 1991 Act, the trial court found that viewing the
four contempt charges and the three harassment charges
collectively made Mary fearful of defendant. The court also
considered the fact that when defendant mailed the ripped-up
court orders, he was in jail serving time for conduct that became
criminal by virtue of the final restraining order that was issued
at the behest of Mary.
We recognize that in the area of domestic violence, as in
some other areas in our law, some people may attempt to use the
process as a sword rather than as a shield. The judicial system
must once again rely on the trial courts as the gatekeeper. The
Legislature has established a self-regulating provision in the
Code that can be used to protect against frivolous prosecutions
under the 1991 Act. The gap-filler measure is the de minimis
infraction provision, N.J.S.A. 2C:2-11. It provides:
The assignment judge may dismiss a
prosecution if, having regard to the nature of the
conduct charged to constitute an offense and the
nature of the attendant circumstances, it finds
that the defendant's conduct:
a. Was within a customary license or
tolerance, neither expressly negated by the
person whose interest was infringed nor
inconsistent with the purpose of the law
defining the offense;
b. Did not actually cause or threaten
the harm or evil sought to be prevented by
the law defining the offense or did so only
to an extent too trivial to warrant the
condemnation of conviction; or
c. Presents such other extenuations
that it cannot reasonably be regarded as
envisaged by the Legislature in forbidding
the offense. The assignment judge shall not
dismiss a prosecution under this section
without giving the prosecutor notice and an
opportunity to be heard. The prosecutor
shall have a right to appeal any such
dismissal.
[N.J.S.A. 2C:2-11.]
The statute, with modifications, was modeled after MPC §
2.12. 1 Final Report, supra, source or reference note to § 2C:2-11, at 23. The drafters of the MPC summarized the historical
basis for that section as a "kind of unarticulated authority to
mitigate the general provisions of the criminal law to prevent
absurd applications." 2 Final Report, supra, commentary to 2C:2-11, at 74. Our courts have not hesitated to use that statute to
terminate a potential prosecution when the charge has been
trivial or the prosecution would have been absurd. State v.
Brown,
188 N.J. Super. 656, 671 (Law Div. 1983); see, e.g., State
v. Zarrilli,
216 N.J. Super. 231, 240 (Law Div.) (dismissing
charge of underage consumption of alcoholic beverage where the
defendant took a sip of a friend's beer), aff'd, 220 N.J. Super.
517 (App. Div. 1987); State v. Nevens,
197 N.J. Super. 531, 534
(Law Div. 1984) (dismissing theft charge stemming from the
defendant's taking of a few pieces of fruit from a buffet table);
State v. Smith,
195 N.J. Super. 468, 477 (Law Div. 1984) (stating
that statute avoids an injustice "in a case of technical but
trivial guilt").
Next, we turn to the question whether defendant violated the
contempt statute by the two mailings. N.J.S.A. 2C:25-29(b) of
the 1991 Act provides that a court "may issue an order granting
any or all of the" listed relief provided by the statute. Ibid.
As noted earlier, the final restraining order of February 6,
1992, prohibited defendant from having contact with Mary and his
three stepchildren, and from making harassing communications to
Mary, defendant's stepchildren, and Mary's mother.
The trial court cited N.J.S.A. 2C:25-29(b)(6) in concluding
that defendant had violated the restraining order by the two
mailings. N.J.S.A. 2C:25-29(b)(6) allows
[a]n order restraining the defendant from
entering the residence, property, school, or
place of employment of the victim or of other
family or household members of the victim and
requiring the defendant to stay away from any
specified place that is named in the order
and is frequented regularly by the victim or
other family or household members.
[Ibid.]
The Appellate Division disagreed with the trial court and
concluded that subsection (6) could not be the basis of a finding
that the mailings constituted contempt violations. The Appellate
Division reasoned that subsection (6) only prohibits defendants
from physically entering certain locations, not communications by
telephone or mail. Instead, the Appellate Division found that
subsection (7) would be the more appropriate section for the
inquiry.
The version of N.J.S.A. 2C:25-29(b)(7) applicable to this
case stated:
[a]n order restraining the defendant from
making any communication likely to cause
annoyance or alarm including, but not limited
to, personal, written, or telephone contact
with the victim or other family members, or
their employers, employees, or fellow
workers, or others with whom communication
would be likely to cause annoyance or alarm
to the victim.
[L. 1991, c. 261, § 13, amended by L. 1994,
c. 94, § 5.]See footnote 1
In finding no violation of the contempt statute, the
Appellate Division explained that
[t]his is the same standard as is contained
in the harassment statute. Because we have
concluded that the communications of June 23
and June 25 were not likely to cause
annoyance or alarm under N.J.S.A. 2C:33-4(a)
it follows that defendant could not have
violated the terms of the restraining order
by those mailings.
[290 N.J. Super. at 601.]
We disagree with the conclusion that a finding that
subsection (a) was not violated is dispositive of whether the
contempt convictions can stand.
Subsections (a), (b), and (c) harassments are petty
disorderly persons offenses. N.J.S.A. 2C:33-4. A contempt for
violating a domestic violence restraining order may be either a
fourth-degree offense or a disorderly persons offense. N.J.S.A.
2C:29-9(a). It is a fourth-degree offense if the conduct
constituting the violation of the court order could itself also
constitute a crime or a disorderly persons offense. N.J.S.A.
2C:29-9(b). In all other cases, a contempt based on a violation
of a domestic violence restraining order is a disorderly persons
offense unless the conduct is expressly exempt by statute. Ibid.
In the present case, the permanent restraining order
prohibited defendant from (1) engaging in further acts of
domestic violence, (2) having contact with Mary, the
stepchildren, and Mary's mother, or having contact with them by
visiting at either of the two homes except as provided in the
order, and (3) making harassing communications to Mary, the
stepchildren, and Mary's mother. N.J.S.A. 2C:25-29(b)(1), (6),
and (7).
Despite the trial court's reference to N.J.S.A. 2C:25-29(b)(6) and the fact that N.J.S.A. 2C:25-29(b)(7) was not
amended until 1994, the permanent restraining order entered on
February 6, 1992, "prohibited defendant from having contact with"
Mary except as otherwise provided in that order. Defendant was
also restrained from communicating with Mary for the purpose of
harassing her. As the trial court found, sending the two
mailings were written contacts with Mary in violation of the
restraining order.
The provision in the restraining order that prohibited
defendant from contacting Mary except as authorized by the order
was not ultra vires before the 1994 amendment modifying N.J.S.A.
2C:25-29(b)(7). The Legislature expressed the clear intent in
the 1991 Act that the judiciary should provide the maximum
protection to victims of domestic violence. Indeed, the first
sentence of N.J.S.A. 2C:25-29(b) authorizes the trial court to
"grant any relief necessary to prevent further abuse." Ibid.
Consistent with that intent, the Appellate Division has upheld a
contempt conviction for violating a provision in a 1993
restraining order that prohibited the defendant from "having
contact" with a victim. State v. L.C.,
283 N.J. Super. 441, 445-47 (1995), certif. denied,
143 N.J. 325 (1996).
The primary purpose for tying the contempt conviction to
criminal conduct is to elevate the seriousness of the contempt
from a disorderly persons offense to a fourth-degree crime.
However, sentence enhancement was not relevant in this case.
Even a conviction for violating the harassment statute, which
would be a petty disorderly persons offense, would not elevate
the contempt convictions.
We reverse the judgment of the Appellate Division and hold
that the two mailings violated the permanent restraining order.
We affirm the judgment of the Appellate Division that the two
mailings did not violate N.J.S.A. 2C:33-4(a). Because the
sentences for the subject harassment and contempt convictions
were concurrent, no resentencing is required. The final
judgment, however, should be amended to conform to this opinion.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-78 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRIAN P. HOFFMAN,
Defendant-Respondent.
DECIDED June 25, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1The current version of N.J.S.A. 2C:25-29(b)(7) provides:
[a]n order restraining the defendant from making contact
with the plaintiff or others, including an order forbidding the
defendant from personally or through an agent initiating any
communication likely to cause annoyance or alarm including,
but not limited to, personal, written, or telephone contact
with the victim or other family members, or their employers,
employees, or fellow workers, or others with whom
communication would be likely to cause annoyance or alarm
to the victim.
[Ibid. (emphasis added).]